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Miller v. Jacoby8/28/2000
ce that he or she had the responsibility to remove the object. . . . Contrary evidence supporting an inference that negligence was not the defendant's often will not dispel the inference that it was; even if such evidence be 'weighty, competent and exculpatory,' it will merely generate an issuance of fact for the jury to decide under proper instructions. (Emphasis added.) Van Hook v. Anderson, 64 Wn. App. 353, 359-60, 824 P.2d 509 (1992) (footnote and citations omitted).
It is also of no consequence that the initial placement of the Penrose drain was intentional. From the time Dr. Jacoby attempted removal of the drain, pursuant to Dr. Ireton's written direction, a portion of the drain inadvertently remained in Miller. In Van Hook the sponges were intentionally placed in the patient temporarily. It is the fact that the sponge was inadvertently left in Van Hook and that the drain was inadvertently left in Miller that the Bauer court says controls. The Bauer court would not only refuse the defense motion for summary judgment, it would send this case to the jury:
Once it is established that the object was inadvertently left inside the patient's body (i.e., negligence), the patient is entitled to any damages that were proximately caused from such negligence.
A patient has the right to have the foreign object removed from his or her body, even if removal is psychologically motivated. Under these circumstances, the physician's negligence is the 'unequivocal proximate cause of some damage,' including the additional surgical procedure. A physician may also be liable for pain and suffering caused by the removal of the object. Bauer, 95 Wn. App. at 669 (citations omitted).
Clearly, Bauer contemplates Miller defeats summary judgment and wins some damages.
The majority opinion concedes that '{e}xpert testimony is certainly not required to understand that objects placed in the body during surgery must be properly accounted for and removed at the completion of surgery.' (Emphasis added.) Majority opinion at 6. It is argued that Bauer does not apply since Dr. Jacoby accounted for the Penrose drain, because she removed it. The majority misapplies the rule. Can there be any doubt that, if the nurse in Van Hook removed ten sponges instead of nine, but one sponge had torn and a fragment remained inside the patient, the resulting liability would have been the same? Even if Dr. Jacoby 'accounted for' the one drain put in place, she failed to properly remove the drain. She inadvertently left two inches of the drain in Miller. A foreign object inadvertently remained in the patient, Bauer controls, and no expert testimony on behalf of the patient is required.
Finally, the majority opinion suggests that the wound had been closed at the time of insertion of the Penrose drain, and that this fact makes the removal of the drain a post-surgical procedure not covered by Bauer or Van Hook. No law is cited for this proposition. And factually, the closing of the surgical wound could not be completed until the Penrose drain was taken out of the wound. Complete removal of the drain would have completed the surgical procedure. The moment of Dr. Jacoby's incomplete removal of the drain resulted in a foreign object that was placed in the body intentionally and temporarily during surgery, then becoming a foreign object inadvertently and permanently left in the patient at the completion of surgery.
The majority's position cannot be reconciled with Bauer. Therefore, I respectfully dissent. The summary judgment should be reversed.
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